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Thursday, November 26, 2020

The changing politics of the Gambian citizenship debate

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By Satang Nabaneh The ongoing public consultations on the constitutional review process spearheaded by the Constitutional Review Commission (CRC) highlights a polarising debate on citizenship which reflects the difficulty of consensus building given the varied interests of stakeholders. Few of the questions at the heart of it are: should a child born in The Gambia be accorded automatic citizenship regardless of parents’ citizenship? Should a person who wishes to acquire Gambian citizenship be required to renounce any other citizenship he or she may have, when a Gambian can hold a dual nationality? Are the prescribed periods of 7 years ordinary residence for a foreign person married to a Gambian and 15 years ordinary resident for a foreign person applying for naturalisation too long? 1997 Constitution and Citizenship Chapter III of the Constitution deals with citizenship in The Gambia on four main grounds. A person is accorded Gambian citizenship either by birth or by descent. These two provisions give equal rights to a Gambian man and woman to give Gambian citizenship to his or her child. Citizen by birth applies to any person who is born in the Gambia and one of his parents is Gambian at the time of his birth. Section 9 states: Every person born in The Gambia after the coming into force of this Constitution shall become a citizen of The Gambia at the date of his or her birth if, at the time of his or her birth, one or both of his or her parents is a citizen of The Gambia. [Emphasis added] Citizen by descent under section 10 applies to any person who is born outside The Gambia and one of his or her parents is a Gambian at the time of his or her birth. This section only allows for citizenship to be passed for only one generation outside the country. The Constitution takes as a requirement, the position that a parent’s citizenship is the basis for conferring citizenship to the child (jus sanguines or ancestry principle). This means that whenever a parent’s citizenship is uncertain, this undoubtedly affects the child. The primacy on the parent’s citizenship is highly disadvantageous. It is important to note that section 9 was amended in 2001 which originally stated that: Every person born in The Gambia after the coming into force of this constitution shall be presumed to be a citizen of The Gambia by birth. [Emphasis added] The then former regime’s arbitrariness resulted to the amendment in the granting of citizenship, switching it from a right into it becoming collectivised, thus political rights likely to be compromised. The pre-amended section recognised the immateriality of a parent’s citizenship for the purposes of determining that of a child. Thus, it is proposed that the provision reverts to its original version to safeguard all children born in the country. In this way, The Gambia will adopt the role of place of birth (jus soli or birthright principle) as the basis for conferring citizenship. Other Constitutional provisional dealing with citizenship include: Marriage to a citizen as provided in section 11 which states: Any person who— (a) is married to a citizen of The Gambia and, since the marriage, has been ordinarily resident in The Gambia for a period of not less than seven years; or (b) has been married to another who was, during the subsistence of the marriage, a citizen of The Gambia and, since the end of the marriage (whether by annulment, divorce or death), has been ordinarily resident in The Gambia for a period of not less than seven years, shall be entitled, upon making application in such manner as may be prescribed by or under an Act of the National Assembly, to be registered as a citizen of The Gambia. (2) The annulment of a marriage of a person who has been registered as a citizen of The Gambia under this section, or under the provisions of any earlier law for the registration as a citizen of The Gambia of a person on account of marriage, shall not affect that person’s status as a citizen of The Gambia. [Emphasis added] While it is commendable that the section recognises that both men and women married to Gambian citizens have a right to become citizens, the requirement that the person be ordinarily resident in The Gambia for period of not less than seven years is quite long and tedious. Naturalisation as a citizen. Section 12 states: Any person who has been ordinarily resident in The Gambia for a continuous period of not less than fifteen years and who satisfies the conditions set out in subsection (2) may apply, in such manner as may be prescribed by or under an Act of the National Assembly, to be naturalised as a citizen of The Gambia. The conditions referred to in subsection (1) are that the applicant— (a) is of full age and capacity; (b) is of good character; (c) has clearly shown that, if naturalised, he or she intends to continue permanently to reside in The Gambia; (d) is capable of supporting himself or herself and his or her dependants. The same reasoning for the prescribed period for marriage to a citizen is applicable for section 12 on naturalisation of citizens which requires the person to be an ordinary resident for not less than fifteen years. 15 years is unreasonable and burdensome. Section 12A addresses dual citizenship. The section states that: A citizen of The Gambia who acquires the citizenship of another country may, if he or she desires, retain his or her citizenship of The Gambia An Act of the National Assembly may make provision for the better implementation of this section. (3) The Minister shall give reasons for any refusal of an application made under this section. (4) No person shall be naturalized until he or she has renounced any other citizenship he or she may have and taken an oath of allegiance to The Gambia. [Emphasis added] This section allows citizens to acquire the citizenship of their spouses without losing their Gambian citizenship if the spouse’s national laws so permits. Dual citizenship is permitted, and citizenship lost can also be regained (section 14), but this is only applicable to citizens by birth and descent. It is not clear whether citizenship by registration shall require a renunciation of the other nationality as is the case with citizenship by naturalisation. However, it can be inferred from section 13 (1) (a) where it states that a naturalised or registered citizen of the Gambia can be deprived of same if he acquires the citizenship of another country. Section 13 states that: (1) The Minister may apply to the High Court for an order depriving a person who has been registered or naturalised as a citizen of The Gambia of his or her citizenship on the grounds that he or she— (a) has acquired by registration, naturalisation or any voluntary and formal act (other than marriage) the citizenship of any other country; (b) has acquired the citizenship of Gambia by means of fraud, false representation or the concealment of any material fact; (c) has, at any time since acquiring citizenship of The Gambia, voluntarily claimed and exercised in a country other than The Gambia any rights available to him or her under the laws of that country, being rights accorded exclusively to its citizens; (d) has within seven years after being registered or naturalised been convicted in any country of an offence involving fraud, dishonesty or moral turpitude. Thus, the Constitution does not allow for dual citizenship for other classes of citizens including naturalised citizens. The requirement to renounce one’s nationality to gain the Gambian citizenship is problematic creating an inequality issue. Section 12(4) requirement that a person renounce any other citizenship in order to acquire Gambian citizenship can result in statelessness for both men and women. For instance, where the person concerned is no longer considered a national by the State given the provisions of section 13 on deprivation of citizenships and as he or she does not hold another nationality, this leads to statelessness. Thus, given the severity of the consequences of the person being stateless, it will be difficult to justify the deprivation of citizenship to be proportionate. The right to a nationality The Gambia is a party to the major international and regional human rights instruments. The Universal Declaration of Human Rights (UDHR) recognises the right to a nationality in its Article 15. This right is reaffirmed across many core UN human rights conventions, including the International Covenant on Civil and Political Rights (ICCPR, Article 24), Convention on the Rights of the Child (CRC, Article 7), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD, Article 5), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Article 9), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CRMW, Article 29) and the Convention on the Rights of Persons with Disabilities (CRPD, Article 18). At the regional level, The African Charter on Human and Peoples’ Rights does not mention the right to a nationality. The African Charter on the Rights and Welfare of the Child (ACRWC) under Article 6 obligates States to ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws The Protocol to the African Charter on the Rights of Women in Africa in Africa (Maputo Protocol, Article 6) provides for the of the right of women to acquire a nationality and, on marrying, to acquire their husband’s nationality. However, it fails to mention a woman’s right to pass citizenship to her husband and by providing for national law to override the treaty’s provision for nondiscrimination in granting citizenship to children, it does not adhere to international norms. The right of every child to a nationality has also been recognised and further elaborated through the decision of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) in the Children of Nubian descent in Kenya v. Kenya. Moreover, in 2014, the ACERWC adopted a General Comment on the Right to a Name, Registration at Birth and to Acquire a Nationality elaborating Article 6 of the African Charter, outlining how this right is to be interpreted and implemented in the African region. General Comments provide States with guidance for framing their domestic laws, practices, and policies to comply with treaty obligations. Setting citizenship right The new constitution is meant to cure the ills of the past and serve as a foundation for a more just and secured society based on equality, the following should be done. On children and citizenship Both the CRC and the African Children’s Charter require that the best interests of the child be the primary consideration in all actions concerning the child. Given that The Gambia has ratified both instruments and domesticated it into the Children’s Act 2005, it should be bound to act in the best interests of a child within their jurisdiction irrespective of the nationality of the child. First, grant citizenship to children born in The Gambia regardless of their parent’s citizenship. This effectively means deepening the jus soli rule rather than the jus sangunis basis for citizenship. Citizenship should be conferred on the domestically born child. This will ensure that where a child was to be normally barred from citizenship because neither of the parents were citizens, will be prevented from becoming officially stateless by virtue of being born outside of his or her parents’ country of origin. To protect unaccompanied and separated minors found in Gambian territory, whose nationality is unknown, the Constitution should presume such minors as entitled to citizenship by birth. The law should provide that a child found in the territory of the state shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that state. There is also need to protect foreign children through naturalisation, even when their parents are not naturalized citizens. This is in light of particular concern of children of irregular and undocumented persons who may not be able to get such protection from their country of origin. Additionally, a non-Gambian child adopted by a Gambian should be entitled to be a citizen of The Gambia. On marriage, naturalisation and dual citizenship Given that the prescribed periods for acquiring citizenship through marriage or naturalisation is unreasonably burdensome, it is proposed that the prescribed period of 7 years ordinary residence by a foreign person married to a Gambian be reduced to 5 years. Similarly, in cases of naturalisation, the law’s requirement of 15 years ordinary residence in The Gambia before a foreign person can apply for citizenship should be reduced to 5 years in line with international practice. Given the unintended consequences associated with renunciation and having one’s citizenship deprived, it is proposed that dual citizenship be also applicable to registered or naturalised citizens. The Constitution should not require a person to choose one citizenship or another when a Gambian can hold dual nationality. Dual model on citizenship The rights to citizenship should be incorporated in the Gambian Constitution within the chapter on “citizenship” section and chapter on “fundamental human rights” respectively. The citizenship chapter focuses on the status of citizenship while the fundamental human rights chapter focuses on the rights and duties arising from the status of such citizenship. The fundamental human rights chapter should prohibit the deprivation of citizenship. It can also limit more substantive rights including political rights. This dual nature mirrors the split in the nationality debate about the status of citizenship and the rights attendant on that status. On obligations of the National Assembly The National and Citizenship Act, Cap 82 has been in force since 1966 governing citizenship. However, sections 12 and 15 of the Constitution provides for further legislation. Arguably, the National Assembly should enact a comprehensive a citizenship and immigration law that adheres to international law standards and practice. Concluding reflections The current citizenship debate points to a need to have a dialogue on what it means to be a Gambian which lies beyond the scope of this particular op-ed article. This should involve the extent to which citizenship represents not merely the diversity of identities and cultural affiliations, but an understanding of its intricate connection with the states project of rebuilding a unitary nation-state in the wake of the crimes committed in the past. Suggested citation: Satang Nabaneh, The changing politics of the Gambian citizenship debate, Law Hub Gambia Blog, 29 November 2018, at https://www.lawhubgambia.com/lawhug-net/citizenship-debate-gambia This article was originally posted on Law Hub Gambia, online legal resources and knowledge platform. Satang Nabaneh is a doctoral candidate. Satang holds a Master of Laws (LLM) in Human Rights and Democratisation in Africa (University of Pretoria), and Bachelor of Laws (LL.B) from the University of The Gambia. As human rights researcher and activist, her publications and advocacy pieces span human rights in Africa, comparative constitutionalism, politics, democracy and rule of law.]]>

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